Citation Nr: 0416950
Decision Date: 06/28/04 Archive Date: 07/13/04
DOCKET NO. 02-05 938 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for
cardiomyopathy status post myocardial infarction (claimed as
heart disorder due to medication).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Helen E. Costas, Associate Counsel
INTRODUCTION
The veteran had active service from July 1970 to June 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2000 rating decision of the
Department of Veteran's Affairs (VA) Regional Office (RO) in
Waco, Texas.
FINDINGS OF FACT
1. The RO has provided all required notice and obtained all
relevant evidence necessary for the equitable disposition of
the veteran's appeal.
2. There is no competent evidence showing that the veteran
incurred additional disability in the form of cardiomyopathy
as a result of injury or aggravation of injury suffered from
treatment at a VA medical facility.
CONCLUSION OF LAW
Entitlement to compensation pursuant to 38 U.S.C.A. § 1151
for cardiomyopathy is not established. 38 U.S.C.A. § 1151
(West 2002); 38 C.F.R. § 3.358 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board observes that the Veterans Claims Assistance Act of
2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002),
eliminated the requirement for a well-grounded claim,
enhanced VA's duty to assist a claimant in developing facts
pertinent to his claim, and expanded VA's duty to notify the
claimant and his representative, if any, concerning certain
aspects of claim development. VA promulgated regulations
that implement these statutory changes. See 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a) (2002).
Review of the claims folder reveals compliance with the VCAA.
That is, by way of a March 2000 rating decision, a February
2002 statement of the case and September 2002, August 2003
and March 2004 supplemental statements of the case, the RO
provided the veteran and his representative with the
applicable law and regulations and gave notice as to the
evidence needed to substantiate his claim. In addition, the
Board's letter to the veteran dated in June 2003 explained
the notice and duty to assist provisions of the VCAA,
including the respective responsibilities of the parties to
identify and secure evidence relevant to the appeal, and
asked the veteran to submit or authorize the release of
additional evidence. Furthermore, the March 2000 RO
decision, the February 2002 statement of the case and the
August 2003 and March 2004 supplemental statements of the
case included the text of the relevant VCAA regulations
implementing the statute. Accordingly, the Board finds that
the veteran has been afforded all notice required by the
VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Additionally, the Board notes that the United States Court of
Appeals for Veteran Claims' (Court) decision in Pelegrini v.
Principi, No. 01-944 (U.S. Vet. App. Jan. 13, 2004) held, in
part, that a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) division on
a claim for VA benefits. In this case, the initial AOJ
decision was made prior to November 9, 2000, the date the
VCAA was enacted. The Board finds that any defect with
respect to the VCAA notice requirement in this case was
harmless error for the reasons specified below.
With respect to the duty to assist, the RO has obtained all
available service medical and personnel records, VA medical
records and conducted a hearing. See Charles v. Principi, 16
Vet. App. 370 (2002).
Finally, as the veteran and his representative have been
fully apprised of the rights and obligations under the VCAA,
and have had ample opportunity to present evidence and
argument in support of the appeal, there is no indication
that the Board's present review of the claim will result in
any prejudice to the veteran. Bernard v. Brown, 4 Vet. App.
384, 392-94 (1993).
Analysis
The veteran seeks compensation pursuant to 38 U.S.C.A. § 1151
for disability incurred as a result of VA medical care.
Initially, the Board notes that the veteran's representative
has presented that the Public Law 104-204 amended the
requirements of 38 U.S.C.A. § 1151. However, the Board
notes that the veteran filed his claim in August 1999,
accordingly, the amended regulations are for application.
See Pub. L. No. 104-204, 110 Stat. 2926 (Sept. 26, 1996)
(amending 38 U.S.C.A. § 1151 to require negligence as the
proximate cause of the death or additional disability
effective for claims filed on or after October 1, 1997).
There are three requirements for establishing entitlement to
compensation. First, the veteran must incur an injury or
aggravation of an injury as the result of hospitalization,
medical or surgical treatment, submission to a VA
examination, or the pursuit of a course of vocational
rehabilitation. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358(a).
In cases of medical care, proof of actual causation between
the treatment and the injury is required. 38 C.F.R. §
3.358(c)(1). The "necessary consequences" of properly
administered medical treatment to which the veteran consented
are not compensable. 38 C.F.R. § 3.358(c)(3). Such
consequences are consequences that are certain to result
from, or were intended to result from, the medical treatment
provided. Id.
Second, the injury or aggravation cannot be the result of the
veteran's own willful misconduct. 38 U.S.C.A. § 1151; 38
C.F.R. § 3.358(c)(4).
Finally, such injury or aggravation must result in additional
disability. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358(b). The
presence of additional injury is determined by comparing the
state of the veteran's physical condition immediately
preceding the injury with the subsequent physical condition
resulting from the injury. 38 C.F.R. § 3.358(b)(1). With
respect to surgical treatment in particular, a before-and-
after comparison is made of the condition the surgery was
designed to relieve. 38 C.F.R. § 3.358(b)(1)(ii). Injury or
aggravation that is merely the continuance or natural
progression of the condition for which the treatment was
authorized is not compensable additional disability. 38
C.F.R. § 3.358(b)(2).
There is no evidence of chronic cardiomyopathy in service, no
evidence of cardiomyopathy within one year after service, and
no competent evidence of a nexus between currently diagnosed
cardiomyopathy and the veteran's period of active duty
service. The veteran contends that his heart disorder is
secondary to the medication he received at the VAMC in
Temple. The veteran presented for an August 2002 hearing
wherein he asserted that when he was hospitalized at a VA
treatment center in 1995 he was prescribed an 80 mg dosage of
Lasix. Upon discharge, the veteran's dosage was dropped to
20 mg. The veteran contends that if he had been kept on the
increased dosage of Lasix, this would have prevented his
congestive heart failure.
However, the medical evidence of record fails to reveal any
nexus between the veteran's cardiomyopathy and his VA
treatment. May 1995 treatment reports diagnose the veteran
with cardiomyopathy, alcoholic. Moreover, the Board notes
that the veteran's hypochloremic state and metabolic
alkalosis in June 1995 were secondary to his diuretic therapy
with Lasix not his cardiomyopathy. The veteran required
aggressive diuretic therapy with Lasix because of his
congestive heart failure not in order to prevent his
congestive heart failure. The Board notes that
cardiomyopathy and congestive heart failure are two separate
entities. Cardiomyopathy causes congestive heart failure and
Lasix is used to treat congestive heart failure.
Additionally, the Board notes that during the August 2002
hearing the veteran stated that he had no medical opinion or
evidence that attributed his congestive heart failure to the
lack of sufficient medication. Finally, the Board finds that
the medical evidence of record is negative of any evidence of
causation or aggravation of cardiomyopathy as the result of
negligent VA care or treatment.
In conclusion, upon a review of the record, the Board finds
that, despite current diagnosis of cardiomyopathy, there is
no competent evidence to support the contention that this
disorder constitutes additional disability incurred as the
result of injury or aggravation of injury suffered due to VA
treatment. The veteran's personal opinion that this disorder
is the result of VA treatment is not competent evidence
needed to establish the required causal relationship. Where
the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). In summary, the
Board finds that the evidence is not so evenly balanced as to
require resolution of doubt in the veteran's favor. 38
U.S.C.A. § 5107(b). Accordingly, the appeal is
denied.
ORDER
Compensation pursuant to 38 U.S.C.A. § 1151 for
cardiomyopathy status post myocardial infarction (claimed as
heart disorder due to medication) is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2